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Decision No. 12,903

Appeal of JOHN UCIECHOWSKI from action of the Board of Education of the Fallsburg Central School District regarding conduct of an election.

Decision No. 12,903

(March 30, 1993)

Levine, Silverman & Klein, Esqs., attorneys for respondent, Kenneth C. Klein, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the results of a special election to fill a vacancy on the Board of Education of the Fallsburg Central School District. The appeal must be dismissed.

Respondent scheduled a special election for November 18, 1992 to fill a vacant position on the board. In preparation for that election, respondent appointed:

David Paige (board president) Chairperson

Vera Gordon Chief Election Inspector

Horace McKenny Inspector

Julian Chaiet Inspector

Shirley Chaiet Clerk

Two voting booths were used at the election and the vote totals were:

Ruby Gold 547

Daniel Geller 160

John Uciechowski 134

Brian Butterfield 47

Lena Coopersmith 33

Ruby Gold was declared the winner, and this appeal ensued.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. Respondent maintains that the appeal must be dismissed because of petitioner's failure to join as a respondent the successful candidate for election, Ms. Gold. Because Ms. Gold would clearly be affected if this appeal is sustained, her joinder is required by '275.8(d) of the Commissioner's regulations, which provides:

Disputed elections. If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent. . . .

Because petitioner has not named or served Ms. Gold, the appeal must be dismissed (Appeal of Weaver, 28 Ed Dept Rep 183; Matter of The Baldwin Assn. of Indep. Taxpayers, 22 id. 282).

Regarding the merits, there is a presumption of regularity in the conduct of an election, and the results of such an election will be set aside only if it is demonstrated that an irregularity has occurred and that there is a probability the results would have been different but for the irregularity (Matter of Boyes v. Allen, et al., 59 Misc 2d 975, reversed 32 AD2d 990, aff'd 26 NYS2d 709; Appeal of Board of Educ. of Gloversville, 27 Ed Dept Rep 1; Appeal of Schoenbach, 25 id. 173). Petitioner asserts that the results of the election must be overturned because of respondent's alleged failure to appoint the appropriate number of election inspectors. Education Law '2025(3)(b) provides:

In union free and central school districts the board of education shall appoint a qualified voter as acting clerk in the absence or inability to act of the district clerk. The board of education shall also appoint assistant clerks and election inspectors as required. At least two election inspectors shall be appointed for each ballot box or voting machine. The board of education shall designate a chief election inspector, and if the district is divided into election districts the board of education shall appoint a chief election inspector for each election district. (emphasis supplied)

The record indicates that respondent appointed only two election inspectors to cover two voting booths instead of the required four. However, petitioner offers no proof that respondent's failure to appoint the appropriate number of election inspectors affected the outcome of the election. Accordingly, there is no basis for overturning the results of the election.

Petitioner also contends that the results of the election must be overturned because the board president acted as the chairperson of the election and two other board members helped the election inspectors and clerk for a short period of time. However, Education Law '2025(2) authorizes a board of education to appoint a qualified voter of the district as chairperson and contains no restriction barring a board member from that position. Nor are board members precluded by law from providing temporary assistance to election officials during a busy period.

Although not entirely clear from the pleadings, petitioner seems to allege that the election must be overturned because respondent's voter registration records are somehow inadequate. In light of petitioner's failure to claim that unqualified individuals were allowed to vote, any inadequacies in respondent's record keeping regarding registration could not have affected the results of the election. Accordingly, there is no basis for annulling the outcome.

I have reviewed petitioner's other contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE